Let Our Seniors Go

Sociologist James W. Loewen is the author of Lies My Teacher Told Me.

Everyone
knows how our prisons bulge with too many young people, mostly black,
put there with too long prison terms, for nonviolent crimes like
selling or possessing illegal substances. Our prisons also bulge
with too many old people, mostly black, put there with too long
prison terms, for violent crimes like murder and rape. In both cases,
we waste money and other resources.

Luckily,
the State of Maryland finds itself in the midst of an unplanned but
useful sociological experiment on senior incarceration. A recent
Washington
Post article tells how, in 2012, the Maryland Supreme court ruled more
than 250 trials conducted before 1980 unconstitutional. Judges had
given juries flawed instructions.1

The
flaw is complicated. Judges told juries they were to judge not only
the facts of their case but also the law. In Unger,
the trial that has lent its name to this whole class of cases, the
judge said, "Anything which I may say about the law, including any
instructions which I may give you, is merely advisory and you are not
in any way bound by it." Unfortunately, he included the phrase
"must be convinced beyond a reasonable doubt" within the
list of instructions that juries might disregard. Juries must not
disregard that phrase. That phrase is part of what we mean by "due
process" and is guaranteed by the 15th Amendment to the U.S.
Constitution. Accordingly, all Maryland trials in which judges gave
such instructions have now been deemed unconstitutional,
retroactively.

As
might be inferred by the length of their sentences, most of these
prisoners had been convicted of serious crimes. In 1975, Merle Unger
shot and killed an off-duty police officer in the aftermath of
robbing a store. The next year, a jury initially convicted him of
felony murder, armed robbery, and using a handgun in the commission
of a felony. Other prisoners had been locked up for kidnap and rape.
Now they might all be freed, unless retried and reconvicted.

It's
not easy to retry people 40 years after a crime took place. Police
often discard physical evidence after 25 years. Eyewitnesses die.
Defending prisoners so long afterward is hard too. Perpetrators2
have no better memories than the rest of us. Where were you
on the afternoon of July 22, 1977?

Hence
most of these prisoners and their prosecutors are making deals to get
free so long as they accept parole. After all, they have moved on to
another portion of their life span. They are old. Some are infirm.
One came into court for his hearing on a gurney. At least two came in
wheelchairs. Others walked, but with difficulty, suffering from
arthritis
and diabetes.
They are unlikely ever to re-offend. Freeing them serves the public
interest.

Other
prisoners are unlikely to re-offend because they have changed
mentally. Some have earned college degrees while behind bars. Karl
Brown was convicted at 17 in the fatal shooting of a man during a
robbery. In prison he changed his name to Kareem
Hasan,
converted to Islam, and claims to have changed his way of thinking.
Released in May, 2013, Hasan, now 55, got a job working at a
wastewater treatment plant. As of November,
2013,
he was saving money to buy a car. As quoted by the AP, he said then
that he and others were excited to get a "chance to show we're
not animals" and "prove our worth." He also spoke to
the families of the victims: "I don't want the victims to think
that we are not remorseful." "I pray every day that God
will forgive." As
of June, 2014,
he was still employed at the treatment plant.

Certainly
55 is a different phase in the life cycle than 17. According to
Michael Millemann, law professor at the University of Maryland who
has been working on these cases, most defendants show signs that
they've reformed after decades in prison. Data bear him out: the
correlation between age and recidivism is strong and negative. The
older the parolee, the less likely he will re-offend.

Forced
by the 2012 ruling, localities across Maryland must review these
cases. In Baltimore, Gregg Bernstein, the state's attorney, said his
office set up a "deliberate, thoughtful, comprehensive"
process that weighs each case individually, determining whether the
prisoner can be reconvicted while assessing what threat he poses to
public safety. The state's attorney in Annapolis, on the other hand,
doesn't plan on making any
agreements. "There are other jurisdictions within the state of
Maryland that are making deals with these individuals - our policy is
to fight them," said Anne Colt Leitess. "We are not willing
to allow people convicted of murder to simply walk out the door
without a fight."

So
far, the state has released 69 prisoners. Two, including Unger, have
been reconvicted. Eight others faced new trials, of whom three have
already pled guilty. At least one lost his chance for a new trial on
the ground that instructions given to his jury differed sufficiently
from those given Unger's jury, so they were constitutional. 120 cases
are still under review, Three prisoners have died while waiting, and
the statuses of some were unknown to the author of the Washington
Post
story.

The
2012 ruling reveals both a tragedy and an opportunity. The tragedy is
that so many of these prisoners could have been released a decade
ago. The tragedy is that so many other prisoners who died in custody
in the 1990s and 2000s could also have been released in their old
age, well before they died.

This
used to happen in America. It used to happen in Maryland. Then in
1993 a prisoner with a life sentence was out of jail on work release
when he killed his estranged girlfriend and then himself. "Get
tough on crime" was the public outcry, and Maryland Gov. Parris
Glendening responded by changing the policy so anyone with a life
sentence would die in prison.

Across
the United States, more than 230,000
male prisoners
are over the age of 50. That's about one in every six. In
jurisdictions like Baltimore that have put thoughtful processes in
place, at least 3/4 of these seniors are winning parole.
Criminologists and penologists in Maryland now have a wonderful
opportunity to study how they do. Hardliners might predict that these
men, having been restricted for so long, face an impossible job in
reconnecting to society and should never be let out. I suspect the
evidence will prove otherwise.

Other
states and the federal government should then use this evidence to
free many of their own seniors. Not only is it sad and lonely to grow
old, get sick, and die in a prison cell — it's also expensive. We
can increase our humanity as a society while we decrease our
expenditures. At the same time, we can take a step toward losing our
current unfortunate title as the major country with the highest
proportion of its citizens behind bars.

2I
use "perpetrators," "murderers," etc., rather
than "alleged perpetrator," "accused rapist,"
etc., because in the overwhelming majority of these cases, guilt is
not the issue. Moreover, this article is not about any alleged
miscarriage of justice at trial.